Packing the Federal Courts with Theocrats and Other Fascists

November 20, 2017 | Revolution Newspaper | revcom.us

The Basic Idea: Trump is packing the federal courts with extreme fascistic judges. He is doing this at an extremely fast pace. The aim: to transform the courts into an openly fascistic arm of the government. Trump is carrying out a top-to-bottom transformation of the federal courts. It is aimed at turning them into a reliable instrument for the all-around fascist transformation of society that is the mission of the Trump/Pence regime. And there is not nearly enough attention being paid to this!

“But the judge story is an untold story; nobody wants to talk about it. But when you think about it... that has consequences 40 years out, depending on the age of the judge—but 40 years out.”―Donald Trump, October 16, 2017

This transformation started with Trump’s January 31 nomination of Neil Gorsuch to the U.S. Supreme Court—Gorsuch is not only on the far right of this majority right-wing court, he has stood out for being impatient with the other reactionaries on the Court for moving too slowly and cautiously in tearing up the existing democratic norms of U.S. society.

But even that is just the tip of the iceberg—Trump is moving quickly to fill all vacant positions in the federal court system (including the district courts and courts of appeal) with like-minded fascists. He has already nominated 59 people to federal judgeships, more than double the number Obama nominated in his first year in office, and amounting to more than 5 percent of total federal judgeships. If Trump remains in power, the number could rise to hundreds by the end of his term.

The federal courts wield tremendous power in the U.S. system. They rule on the constitutionality of actions, laws, and policies of the other branches of the federal government, and of states and cities—any law that is passed by Congress, any executive order of the president, can be overturned by the federal courts.

These courts do not stand “above” society representing for some abstract “justice”—they are an instrument of the rule of the capitalist-imperialist system, and historically they have sanctioned slavery, Jim Crow, the internment of Japanese people in World War 2, the criminalization of LGBTQ people, and every other horror this system has brought down on people here and around the world.

But Trump is spearheading an “extreme makeover” of this already extremely oppressive society—one that requires tearing up and trampling on the previous rules, norms, and even fundamental constitutional rights that have provided a framework for the functioning of this system up until now. Things like separation of powers, rule of law, separation of church and state, the rights to freedom of speech and freedom of the press, civil rights and equality before the law for people of all nationalities, including the right to vote, women’s reproductive rights, LGBTQ rights, and more, are intolerable obstacles to Trump’s vision of “Making America Great Again.”

Federal judges have lifetime appointments, meaning most judges were appointed before fascist forces in the ruling class became dominant. Many of these are oriented towards the nonfascist wing of the ruling class which is resistant to much of Trump’s program. There were also many right-wing judges appointed in the last few decades, but even some of them tend to accept and operate within the basic norms and protocols that have prevailed in the U.S. since World War 2 and the 1960s.

So, many of these courts are not fully “down with the program,” and have been throwing up significant obstacles to key parts of Trump’s agenda—this came out very sharply with Trump’s Muslim Ban, versions 1.0, 1.1, and 1.2, all of which were either fully or partially blocked by various federal courts.

Trump has railed against the courts, referring to “so-called judges” and so forth. And if push comes to shove, he might use his domination of Congress and the military, as well has his strong influence among cops and other pigs, and the fascist mobs who adore and follow him, to bludgeon, overrule, or even disband courts that refuse to accede to his demands. But any moves like that would be dangerous for the regime. So for now, Trump is concentrating on packing the courts with people who are down with his whole program.

Let’s look at some of the nominees so far, who are moving smoothly through the Senate confirmation process—including even the four nominees who were rated “not qualified” by the American Bar Association.

Brett Talley, nominated to the Alabama district court, has been an attorney for three years, and has never taken a case to trial. His sole “qualifications” for being a federal judge are that he graduated from law school... and is a fascist lunatic. Talley is a fervent supporter of the National Rifle Association (NRA), which over decades morphed from a “sportsmen’s association” to a nerve center of racist and fascist terror. Talley said of the NRA that “I pray that in the coming battle for our rights, they will be victorious.” When a reader responded that “We will have to resort to arms” to “yield the desired results,” Talley wrote back, “I agree completely.”

Amy Coney Barrett, nominated to the 7th Circuit Court of Appeals, belongs to “People of Praise,” a Catholic group that, according to the New York Times, holds that “husbands are the heads of their wives, and should take authority over the family.” Members “swear a lifelong oath of loyalty,” and women are assigned a personal advisor, called a “handmaid,” who directs them in all aspects of their lives.

Jeff Mateer, nominated to the Texas Eastern District court, once described transgender children as part of “Satan’s plan.

Damien Schiff, nominated for the U.S. Court of Federal Claims, wrote that he “disagrees with a landmark ruling decriminalizing sodomy” (including gay sex).

John Bush, confirmed to the Sixth Circuit Court of Appeals, “compared the Roe v. Wade decision legalizing abortion to the infamous Dred Scott decision that affirmed the right to own slaves.” (Re Barrett, Mateer, Schiff and Bush, see the Christian Science Monitor, October 2, 2017.)

Two interwoven fascist currents define these nominees. One is “originalism,” the legal doctrine that the U.S. Constitution should be “interpreted” according to the “original intent” of the “founders.” Let’s remember—the “founders” were slave owners or enablers of slavery; the “original” Constitution held that Black people were not full human beings, denied women and people without property the right to vote, and under that Constitution, men could legally beat and rape their wives. The founders’ “original intent” was white supremacy and unbridled patriarchy!

The second is Christian fascism. These people believe that the Constitution should be “interpreted” according to the “original intent”... of the fucking Old Testament, in which women were chattel (property) and gay people were condemned to death.

And as Ilya Shapiro of the libertarian Cato Institute told the Christian Science Monitor, Trump wants “to avoid” appointees who are “too judicially restrained. There’s definitely been an effort to identify people who are seriously committed to doctrines and modes of analysis rather than just being seen as conservatives or Republicans.” (Emphasis added) In other words, Trump doesn’t just want “right-wing” judges, he wants judges who will not be constrained by legal precedent, constitutional niceties, or even what is generally considered to be basic decency, from carrying out the fascists’ “extreme makeover” of U.S. society.

Stacking the courts with these deranged fascists is an “untold story”—and an extremely ominous development, which underscores the great urgency of driving this regime from power at the soonest possible time.